I AM a law student, preparing a paper on civil procedure.
The Lipstadt
case is one of about a dozen I will be citing at length.
The transcripts and commentary by Gray J, Sedley J
and Pill J, inter alia, are clear. I am hoping you
will be able to explain an element of your strategy which is
not clear (to me, at least). Thank you, in advance, for your
attention in my query.

Prior to your oral arguments before the three-judge
panel, subsequent to your going down before Gray J and
Sedley J, you submitted the Polanska-Palmer and
[Germar] Rudolf affidavits, arguing that these would
demonstrate that Gray J disregarded the weight of the
evidence.

In response, Lipstadt filed affidavits by Mazal, Van
Pelt and Green, which you received. With no
explanation, you then withdrew the Polanska-Palmer and
Rudolf affidavits. Pill expressed the panel's "dismay'' at
your action. Pill et al approved Gray and declined to
grant you relief.

My question is simple: Did you withdraw Polanska-Palmer
and Rudolf because the three responding affidavits showed
they were bad and would not shift the weigh of the evidence
in your favour? Or?

I will be very happy to answer any questions you still
have after reading those two items

I am grateful for your response. I have now read the
two items. I have one further question about the action.
It was your contention that Polanska-Palmer and Rudolf
would shift the weight of the evidence in your favour.
Why then, as it appears from the papers, did your counsel
give PillLJ etc. no explanation for the
withdrawal of your intention to bring the affidavits?
Your counsel's silence did not favour you.

WE
attached far more importance to the evidence that the
expert witnesses were not neutral, as is required in
law. I eschewed calling [Germar] Rudolf in the
first instance [the 2000 Trial] because (a) I had
no idea that the case was going to devolve into an
examination of whether the Holocaust happened or not,
which should have been no concern whatsoever of the
court; (b) [. . .] in my judgment he
would have cut a poor figure in the High Court witness
stand.

In the second Instance (appeal proceedings), Rudolf
first supplied at my expense a report which lacked all
scientific notes and source references; useless as an
expert report. He very grudgingly then filled these in.
Scientifically it was a good report, but we could not put
it before the Court for the legal reasons stated.
[... Further comments about
the Germar Rudolf legal situation
omitted.]

Counsel (Adrian Davies) had no need to explain
to the Court why we could not put in the Rudolf Report.
The Court had already refused to let us put in in
evidence Prof
"Skunky" Evans's post-trial book Lying about
Hitler, since our solicitor (by then, discharged) had
not given proper notice to the respondents.

If you decide not to call evidence, there is no
requirement to inform a Court why. In the first instance,
the [2000] libel hearing, Lipstadt's attorneys
decided not to call either her or two expert witnesses,
and did not explain why. That put me to disadvantage,
having had to waste time preparing their
cross-examination, and all the Discovery to go with it.
These things happen.

As for who won: since Lipstadt's team wasted some 13
million dollars which they could not recover, it must
seem a Pyrrhic victory at best. What kind of victory is
it that costs so much, and takes a team the size of
theirs, with payments
the size they are found to have made to their
witnesses, to accomplish against a lone and unskilled
plaintiff, arguing without legal aid, and unaided in
Court?

I wonder if any UK publisher will dare to publish her
next book: we are eagerly awaiting her next arrival in
the UK. As her lawyers remarked in private correspondence
with other lawyers, which I have seen, "David Irving is
more active than ever before," writing books, travelling
the USA, lecturing, organising lectures and international
conferences and the rest.

I certainly do not feel defeated.

As for pursuing Gita Sereny and The
Observer: by agreement with them I played that match
second; unfortunately however the British Government
trustee seized my entire archives including all my legal
files, and including the case files for The
Observer action, Discovery, etc., etc. This has
delayed things beyond the point where it seems to make
sense to proceed. The trustee is now negotiating to
return my archives, library etc., but we have a new fight
with them as I am claiming substantial compensation for
wrongful deprivation.

IF Rudolf is a flake, why did you expect him to help
shift the balance of evidence in your favor? And what of
Polanska-Palmer? I press this point because the
balance-of-evidence issue was something upon which you
relied going into your appeal process.

The Penguin/Lipstadt expert witnesses' fees, counsels'
fees: I don't understand your point. Is it that because
the victory cost money, it is, in law, less of a victory
than if it cost nothing? Or if it cost less?

The Penguin/Lipstadt
fees are in line with counsel and expert witnesses in
cases of similar complexity and duration. You can't be
suggesting the court was unduly swayed or impressed by
the effects of the money spent? Gray J, when a first-rank
QC, would have been running up the steepest of fees and
calling the most expensive of expert witnesses.

You are beginning to trespass on my patience with your
obstinacy, so your capital is beginning to run out!

If Rudolf is a flake, why did you expect him to
help shift the balance of evidence in your favor? --
For the same reason that The
Leuchter Report was of use: both have solid,
objective, scientific points to make, Leuchter with his
tables of forensic tests (produced by forensic chemists
of unquestioned expertise and qualifications); Rudolf by
shooting down the "scientific" arguments of the
non-chemists used by the defence. These arguments were
not deployed in the first trial; remember, expert reports
are exchanged simultaneously.

And what of Polanska-Palmer? I press this point
because the balance-of-evidence issue was something upon
which you relied going into your appeal process. --
Without wishing to come down too harshly on her, I
discovered that she had no tattoo. Maybe she was in
Auschwitz, but . . . maybe not. It would have
been highly unfortunate if she herself, a defence
witness, had turned out to be an
ASSHOL -- a member of the
Association of Spurious Survivors of the Holocaust and
Other Liars. As things turned out however, our solicitor
Nigel Adams -- fired on the eve of the Appeal --
had neglected to secure her jurat on the affidavit, so
that was that.

Is it that because the victory cost money, it is,
in law, less of a victory than if it cost nothing? Or if
it cost less? -- Wolff LCJ ruled in the first
clause of his new Rules of the Supreme Court that justice
must be obtained with proportionate costs, or words to
that effect. When one side spends $13m, and the other can
afford to spend nothing at all... well, again, you seem
an intelligent human being. Try. (See my opening sentence
above). As I said in my remarks to the press on the
Judgment day in April 2002, "Sometimes Goliath wins."

The Penguin/Lipstadt fees are in line with counsel
and expert witnesses in cases of similar complexity and
duration. You can't be suggesting the court was unduly
swayed or impressed by the effects of the money
spent? -- The Court did not learn of them. The expert
witnesses were invited to express opinions on the basis
of their expert knowledge, -- and they were paid upwards
of half a million dollars each by only one side. Go
figure. When Gray J was told of the
actual fees paid to these "neutral" expert witnesses,
he said that he was shocked, that the amounts were
"obscene" (his word), and that he would not allow them to
be charged in their entirety. As it was, the Defence,
despite explicit Orders to do so from the Court of
Appeal, never had their costs taxed. I do not wonder
why.

Gray J, when a first-rank QC, would have been
running up the steepest of fees and calling the most
expensive of expert witnesses. -- Your point is?

Incidentally, what law school are you attending? I
like to keep track of these things.

Thursday, July 28, 2005

I AM sorry you ignored my follow-up questions about
Rudolf and Polanska-Palmer. When I told my tutor you were
proving obdurate he said I'd been wasting my time because
you're the "Lord Haw-Haw'' of our age.

I suppose your silence operates in neat symmetry with
that of your barrister on the same issues at your appeals
process. You won't object if I record your failure
convincingly to respond in my presentation to
college.

THEN, pray ask me those questions again, if you feel I
did not respond substantively. You will appreciate that I
am also hard at work every day of the week on real
history projects, and that answering letters from
(basically unfriendly) correspondents does not rank very
high on my priorities.

Your
tutor sounds like an intellectually very ill-blessed
person. Since he has mentioned the name of "Lord Haw-Haw"
(left) -- William Joyce -- I recommend him
to listen to the broadcasts of William Joyce one day
(they are available on tape now); or, failing that, to
read them in the BBC Monitoring Reports as I did back in
the 1960s (he had over 2 millions listeners in the UK for
every wartime broadcast, an achievement which speaks for
itself); and perhaps your tutor, whom you did not name,
might also read the book, I forget its title, containing
Joyce's last letters from the condemned cell (below).

He
was not afraid of death, he wrote in one, because the
instant of agony that the hangman's noose would cause him
upon leaving this life was as nothing compared with the
pain he had caused his mother while entering it. I never
met Joyce, and I hesitate to condemn sight unseen persons
I have never met or known.

May I recommend this habit to your tutor, who seems,
from your brief reference to him, to be singularly
bigoted, tunnel-visioned, and even purblind. Of course, I
confess, I may be mistaken, not having met him.

[Postscript:
a reader informs me, Friday, July 29, 2005, The book
"Hitler's Airwaves" contains a CD with a number of
recordings of William Joyce's broadcasts from wartime
Germany. It is readily available: http://www.addall.com/detail/0300067097.html
]